Diversion is an opportunity for first offenders to have their charges dismissed.  There are certain offenses that are ineligible for diversion, such as crimes of violence.  Also, the defendant must not have any prior disqualifying convictions or previous diversion programs.

The program typically consists of an educational class, a court fee, and community service.  After completion of the program, we usually file a motion for expungement.

To determine if you qualify for diversion and to learn more about the program, you should contact one of the attorneys in our office at 513-333-0014.  The initial consultation is free and we welcome your call.

I get this question a lot and there are a lot of myths and misunderstandings surrounding this point. A lot of people have the impression that convictions “fall off” or are magically wiped from your record after a certain period of time. I think the Transportation Cabinets practice of limiting the time frame that they look back at one’s record and the insurance companies’ practice of only considering the past five years of one’s driving record play a big role in the confusion.

Let me be very clear A CONVICTION STAYS ON YOUR RECORD FOREVER. It does not matter if the charge was a misdemeanor or a felony, unless you were a juvenile at the time, whatever you were convicted of is still on your record today, no matter how long ago it was.

Many people find this out when it is too late. During a job application they either list the conviction thinking that the company will not consider it because it is “too old” or, worse yet, the leave t off the application al together, believing that the passage of time has made those old charges disappear. It simply is not true and most employers in Cincinnati and Northern Kentucky will find them during a standard criminal background check.

The only exception is if the case was properly expunged. That will be the subject of my next post. So, barring the court allowing a later expungement if you are eligible, the best way to keep a conviction from preventing you from getting the job you want is to not get convicted in the first place. That is why good representation is so important. You need to contact an attorney as soon as possible so they can review the evidence in your case and determine what defenses exist. To the untrained eye most cases look hopeless, but to an experienced criminal law attorney most cases have something worth fighting over. Get the facts and know what’s at stake before making any decision to get a permanent black mark on your record. Your future may depend on it.

Cars, unlike houses, do not require warrants in order to be searched. There are a number of reasons for this (like the fact that a car is more easily moved and the contents taken out of the jurisdiction of the Police) but the law makes a definite distinction. However, just because a warrant is not required does not mean that the Police can search for no reason at all. In fact, the police must still have probable cause to search, your consent, or must do a valid inventory search in order to go through your car.

Probable cause is a legal term of art that means a reasonable suspicion based on articulable facts that the place to be searched contains the item to be seized. The cops have to have more than a hunch, and must be able to explain to the judge what the logical reason was for searching your car. Things like the drug dog alerting on your passenger door can be enough, or the police seeing a gun or a contraband item in the back seat could be enough under certain circumstances.

Even without probable cause the police can ask for your permission to search. Most people do not feel like they can tell the Police “No”, but you absolutely have the right to refuse to allow them to search. So, after they office finishes writing you a ticket for having one headlight out he will usually say “do you mind if I look around the car a little bit”. If you say yes you may have just consented to having your car searched.

Finally, if the police have  the authority to tow your car as a result of the underlying offense (like in a DUI for example), they may be allowed to search the vehicle in order to inventory the items  inside. In certain circumstances those inventories and the evidence found as a result are legitimate.

Searches of vehicles are very tricky issues and can often come down to issues like whether the probable cause extended to opening your purse, or opening a closed box in the trunk. Even if the police have found something in your car does not mean that the search was done right. The consequence for an invalid search is that the evidence against you is tossed out (a doctrine often referred to as “The Fruit of the Poisonous Tree”).

These issues are very important and need to be fully explored. If your vehicle has been searched and police have found incriminating evidence call me, Mike Zimmerman, at Suhre and Associates. A lawyer is available 24 hours a day to consult with people in Northern Kentucky who have been charged with a crime. With former prosecutors and former police officers on staff we have the experience to help you with these issues and get the best result possible for your case.

People come into contact with police officers in many different types of situations and not all questioning triggers the requirement to be advised of your Miranda rights. Officers are required to give you the standard advisement when they engage in a “custodial interrogation” (meaning when they ask you incriminating questions after they arrest you).

So you first need to be arrested and then the police need to ask you incriminating questions. If either of those two things do not occur, it is not a violation of Miranda.

Let’s take a look at some common police interactions that illustrate this point. During a traffic stop the police officer approaches the vehicle and says “I smell marijuana in the car. do you have drugs in there?” Is this an incriminating question? Absolutely, a yes response will definitely be used against you.

Are you under arrest when he asked the question? Well, you have been pulled over, if you attempt to leave he will probably stop you but, you have not been placed in handcuffs or transported to the police station. Though this interaction does not seem consensual when you are going through it, the court is likely to find it non-custodial so Miranda rights are not triggered.

What if the police call you and say they want you to come down to the station and speak to a detective about a case? Arguably, the police station setting could be considered custodial. However, if they do not suspect you of any involvement then the questions they are asking may not be considered incriminating to you. If your answers reveal your own involvement in the crime, they could use them against you

As you can see, Miranda rights are not a complete protection, and a violation of Miranda does not get the case automatically dismissed. If the officers violate the law your statements may be thrown out of court and any evidence they gathered based on your statements could be thrown out too, but the Commonwealth can still proceed with the case.

Because Miranda does not always apply and because the penalties do not completely protect you, it is important to consult an attorney before making any statement s to the police. You may unknowingly implicate yourself and cause your situation to become much worse. Often clients will say that they felt like they should answer the questions to avoid being arrested or suspected.

Believe me, if the police are asking you those types of questions they already suspect you, do not give them any more evidence to gain probable cause to arrest you or use against you in court.

The lawyers at Suhre and Associates are available 24 hours a day to Northern Kentucky Residents to discuss your situation with you. Call us at 513-333-0014 and speak to someone who is looking out for you best interests before you say anything to the police.

The Fourth Amendment to the Constitution prevents the government from searching your house without probable cause unless you consent. Probable cause can come in the form of a warrant issued by a judge and based on facts that the officer presents.

Those hearings are often done in secret and without the defense present since they usually take place long before you are charged. However, you are entitled to a copy of the warrant and may be entitled to see what evidence the judge considered in order to attack the judge’s probable cause determination. Probable Cause can also be in the form of “plain view”.

These situations often occur when an officer knocks on the door and looks over your shoulder to see if he sees any drugs or paraphernalia lying in plain sight. If the officer does he may come in and seize the evidence and arrest you. There are a few other narrow exceptions but probable cause is the most likely justification.

If an officer does not have a warrant or does not see something illegal in plain view then he cannot search unless you allow him. A savvy officer will not ask you if it is okay to search. He will not phrase the interaction in a way that makes you feel like you really have a choice but remember . . . you do.

He may seem really nice about and say things like “I just need to take a quick look around to make sure everything is all right” but he is trying to find evidence against you. It is your house and, absent a warrant, you have the right to say no.

This right is absolute and continues throughout the search. That means at any time you can take back the permission you gave or you can limit it to certain areas of the house. However, it is seldom a good idea to let the police in to search without a warrant anyway. The chances are very good that it will end badly for you.

If the police want to search you house call our firm immediately. An attorney is available 24 hours a day to help people in Northern Kentucky who are facing these very tough decisions. Just call 513-333-0014 to speak to an attorney 24 hours a day.

Contrary to popular belief, marijuana laws are generally tougher for people arrested in Northern Kentucky than across the river in Ohio. A first offense possession of marijuana charge is considered a Class A misdemeanor (as long as the amount was less than 8 ounces). Which means you can be sentenced up to 1 year in jail and/0r a $500 fine. If the amount is more than 8 ounces then the charge becomes a Felony. In addition, if you get caught with marijuana a second time (regardless of the amount) the charge is a Felony and could result in 1-5 years in prison. Therefore, it is important to hold the Commonwealth accountable and review all the evidence to see if the charges are legitimate and protect your Constitutional rights. Even if there is a lot of incriminating evidence it is still likely that Commonwealth will be agreeable to treatment and/or diversion instead of a conviction.

If you are facing a marijuana charge, do not go in alone and unprepared. Call an attorney and allow them to use their education and experience to help you. Myself or an attorney from my firm can be reached 24 hours a day by calling 513-333-0014.

After someone is arrested for a felony in Northern Kentucky the first step is the preliminary hearing (see earlier blog post in regards to that topic). If the preliminary hearing is waived or the District Court Judge finds probable cause exists, then the charges are referred to the Grand Jury. The Grand Jury is made up of citizens from the voting rolls just as a ordinary jury is. However, the defense is not allowed to appear and cross examine witnesses nor produce its own witnesses. The defendant has the option of testifying before the Grand Jury but this is extremely rare.

The Grand Jury’s deliberations are secret and not subject to release. However, the recorded testimony before the grand jury can be produced to the defense upon demand. Typically, these witnesses are the arresting officer and the victim (if applicable). The Grand Jury can vote to indict (pronounced in-dite and means to charge with an offense) the charge as it is presented by the prosecutor, indict on a lesser charge or ignore the case all together. If an indictment is approved by the Grand Jury then a warrant is issued on that indictment and the defendant is arraigned on the charge. If it is a felony indictment then the case is sent to Circuit Court. If it is a misdemeanor then the case is sent to district court.

In any event, if your case is going to a Grand Jury it is a serious matter. You need to act quickly to ensure your rights are being protected. If you have any questions please call me, Mike Zimmerman, at 513-333-0014.

In Northern Kentucky the next step after someone is arrested for a felony is a preliminary hearing. This is a contested hearing before a district court judge and usually occurs within 10 days of arrest (especially if the defendant remains incarcerated after arrest).

The prosecutor presents witnesses to try and convince the judge that there is probable cause to believe that a crime was committed and that the defendant committed the crime. Because the burden of proof is much less than at a trial, the prosecutor generally does not call all potential witnesses to testify at the “p.c. hearing”; generally, the victim and some eye witnesses or the police witnesses (if there is no victim) testify. The defense can cross examine the witnesses, and can present its own evidence (including witnesses).

If probable cause is established, the defendant’s charges are “referred” to the grand jury. If the judge decides that there is not probable cause that the defendant committed the crime, the charge can be dismissed or reduced to a misdemeanor for trial in district court. Defendants can also decide to waive their rights to a probable cause hearing, wherein the charges are referred to the grand jury without any testimony or hearing.

There are two types of Diversion programs in Kentucky, one for felonies and one for misdemeanors/violations.

For felonies, the program is directed by statute and only applies to Class D, non-violent, first time offenders. The Commonwealth’s Attorney must agree to send the charge to Diversion. Once that occurs the defendant is required to plead guilty to the offense. The matter is then sent to the Probation Department for a Pre-Sentence Investigation. If that report comes back confirming that the defendant is eligible the judge will approve entry into the diversion program. If the investigation comes back that the defendant is ineligible, that finding may be challenged or the defendant may request to withdraw his/her plea and start the case again.

Once placed into the Diversion program the defendant has numerous conditions that must be met (treatment for substance abuse, random screens, restitution, no new offenses etc). If those conditions are met, the charge is dismissed at the end of the diversion period (and may later be expunged). The diversion period is generally 3-5 years in length on a felony. While the diversion period is ongoing, the charge remains active and will likely show up on employment background checks as a “pending” charge.

Misdemeanor diversion varies from county to county. Generally, it is required that the defendant be a first time offender (sometimes defined as “first time in Kentucky”), non violent, non DUI (except Jefferson County). For a misdemeanor it does not matter what Class it is. Most counties do not require a plea to be entered before entering the program. However, the conditions that must be met are much like the felony  diversion program (restitution, treatment, no new offenses) though the period is much smaller (generally a matter of months).

The benefit to either program is that, if successfully completed, your record remains clean at the end. However, if the conditions are not met and diversion is unsuccessfully terminated, you will be right back where you started. It takes a commitment, but often times it can be a great second chance.

If you have any questions about a pending case please call me, Mike Zimmerman, at 513-333-0014.

Maybe yes, maybe no. It really depends on the terms of your employment.

Additionally, if you are convicted and you get jail time, it is sometimes very difficult to explain the absence to your employer and they terminate you for the absence.

So either way, a conviction can definitely impact your employment.

If you’ve been arrested in Northern KY and are worried about losing your job, call us 24 hours a day, 365 days a year at 513 333 0014.